The WOTUS Rule

State of Georgia v. U.S. Environmental Protection Agency

 

The Clean Water Act (CWA) gives the EPA and the Army Corps of Engineers (Corps) regulatory jurisdiction over the “waters of the United States.” The Supreme Court has interpreted this phrase to refer to relatively permanent, standing or flowing bodies of navigable water. Nevertheless, the agencies in 2015 promulgated a new Clean Water Rule (WOTUS Rule) expanding their jurisdiction to include non-navigable, intrastate “waters”—including roadside ditches, wetlands not adjacent to waterways, and small creeks that are dry for much of the year—that are rightfully the states’ sovereign responsibility.

 

Wisconsin joined Georgia and 28 other states in challenging the WOTUS Rule. The States in the Georgia suit, filed in the United States District Court for the Southern District of Georgia, argue that the Rule (1) exceeds the agencies’ authority under the CWA, (2) is arbitrary and capricious under the Administrative Procedure Act (APA), (3) renders the CWA in excess of Congress’ authority, (4) interferes with the States’ Tenth Amendment sovereignty, and (5) was issued in violation of the APA’s notice and comment provisions.

 

Because of uncertainty as to which court had original jurisdiction to review the Rule, “protective” petitions for review were filed in several federal courts of appeals contemporaneously with suits in federal district courts. The protective petitions were consolidated in the Sixth Circuit Court of Appeals, which stayed enforcement of the Rule pending the outcome of this part of the litigation, and ultimately ruled that review of the WOTUS Rule properly belonged in the courts of appeals pursuant to the CWA’s judicial-review provision. Subsequently, however, the United States Supreme Court unanimously agreed with the States that the district courts were the proper veunue, reversing the Sixth Circuit’s ruling as to jurisdiction. The 11th Circuit Court of Appeals granted the States' request to expedite issuance of its mandate to the Southern District of Georgia to resume proceedings.

 

Status: The EPA has now suspended enforcement of the WOTUS Rule for two years, pending promulgation of a new version of the Rule.

 

Litigation Closed: 
No